Summary: Mr Y’s daughter complains the Council incorrectly assessed Mr Y’s care needs and failed to ensure he could make an informed decision with his family about his future care. The Council was not at fault.

The complaint

1. Mr Y’s daughter (Ms V) complains, for Mr Y, the Council incorrectly assessed his needs. She also says the Council failed to ensure he could make an informed decision with his family about his care.
2. Mr Y’s daughter said her father would have been at risk if he moves from the care home into sheltered accommodation because of the Council’s wrong assessment. This has caused his family concern and worry.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
4. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

5. I considered evidence provided by the Council and Ms V when making this decision.
6. I considered the Care Act 2014, Mental Capacity Act and Code of Practice 2005.
7. I gave Mr Y’s representative and the Council the opportunity to comment on the draft decision. I considered the comments received before making a final decision.

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What I found

Legal Background

8. Sections 9 and 10 of the Care Act 2014 require local authorities to carry out an assessment for any adult with an appearance of need for care and support. The assessment must be of the adult’s needs and how they impact on their wellbeing and the results they want to achieve. It must involve the individual and where suitable their carer or any other person they might want involved.
9. The Mental Capacity Act 2005 sets out the principles for working with people who lack capacity to make a particular decision.
10. The five key principles in the Act are:
• every adult has the right to make his or her own decisions and must be assumed to have capacity to make them unless it is proved otherwise.
• a person must be given all practicable help before anyone treats them as not being able to make their own decisions.
• just because an individual makes what might be seen as an unwise decision, they should not be treated as lacking capacity to make that decision.
• anything done or any decision made on behalf of a person who lacks capacity must be done in their best interests.
• anything done for or on behalf of a person who lacks capacity should be the least restrictive of their basic rights and freedoms.
11. References to capacity are to a person’s capacity to make a particular decision at the particular time it needs to be made.
12. Local authorities should ensure they respect the first principle of assuming capacity. However, it is important to carry out an assessment “when a person’s capacity is in doubt” (Code para 4.34). Even where someone tells a council they have concerns about a person’s capacity, it has to balance this concern alongside its observations and consideration of the person’s behaviour. The assessment process can, itself be intrusive. The council must decide it has grounds to consider a mental capacity assessment is necessary.

What happened

13. Mr Y, who suffers from dementia, entered a 24-hour residential home for respite care in October 2018. As his partner was in ill health, Mr Y could not return home. The Council carried out a needs assessment in November 2018.
14. The Council’s needs assessment found Mr Y’s needs could be met in sheltered accommodation, however Mr Y’s family disagreed. The family felt Mr Y would not be safe without 24-hour support. The family also expressed doubts about Mr Y’s mental capacity. During a meeting between the Council, Mr Y and his family, Mr Y said he wanted to move to sheltered accommodation.
15. Because of the difference in views, the Council then met with Mr Y alone to discuss his future care in November 2018. Mr Y said he would be happy to live in sheltered accommodation as he rarely had falls and did not need or want night care. The Council’s notes show it had no doubt about Mr Y’s capacity at this time. Following discussions with Mr Y’s partner about whether more support would allow Mr Y to return home, the Council visited Mr Y in January 2019. It explained to Mr Y that even with more support he could not be cared for at home.
16. Mr Y’s son contacted the Council, asking why it had met with Mr Y alone. He said his father’s capacity should be considered. The Council explained it visited alone to confirm Mr Y’s wishes and to update him on its discussions with his partner as in their view Mr Y did not show signs of lacking capacity to make decisions about his care.
17. In February 2019, Mr Y asked the Council in writing for his children to be fully involved in all decisions about his future care. He asked that at least one of his children be present in all future meetings between him and the Council.
18. Ms V complained to the Council in April, that the needs assessment was wrong and Mr Y could not understand that he would be unsafe living in sheltered accommodation.
19. Following the complaint, a social worker from the Council met with Mr Y alone to get Mr Y’s consent for the complaint but the discussion led to the Council discussing Mr Y’s care. Mr Y said he was unsure of his choices for care, although he recognised he could not return home. The Council says it then explained the different alternatives, including sharing a recently produced leaflet for sheltered accommodation. It says this led to the reason for the visit becoming confused, leading to Mr Y’s family feeling excluded, given their request to be involved in all such meetings. It says this was not the Council’s intention and that it has since apologised to the family.
20. Mr Y’s family then complained again in May 2019, including that the Council had visited Mr Y without one of his children present despite his written request for it not to do so.
21. The Council responded to the complaint in May 2019. It said that Mr Y had been clear in his wish to move into sheltered accommodation and not to remain in residential care. It did not address the complaint about the visits to Mr Y without one of his children being present or invited.
22. In October 2019, the Council reassessed Mr Y’s care needs after the care provider advised that his health had worsened and his needs had changed. Mr Y’s family was present at the assessment meeting. The case notes record Mr Y was unable to remember discussions about his future care choices.
23. Following discussions about Mr Y’s changing needs, the Council agreed to consider making the residential placement permanent and agreed to complete a mental capacity assessment. The Council found Mr Y lacked capacity to decide his future care. The Council later agreed with Ms V, who has Lasting Power of Attorney for her father, that Mr Y should remain in residential care.

Findings

The Council’s assessment of Mr Y’s care needs

24. The Council’s needs assessment found Mr Y did not need 24-hour residential care based on the Council’s social worker’s professional opinion. The notes show the social worker considered relevant factors, including Mr Y’s ability to maintain his own hygiene, dress himself and make decisions. The assessment recorded the views of Mr Y’s family. The assessor had no concerns about Mr Y’s capacity to make decisions at this time so did not require a formal assessment of this.
25. The Council also sought updates and further information from the residential care provider Mr Y was staying in to update its view on Mr Y’s needs. When the care provider contacted the Council, to say Mr Y’s needs had changed, the Council reassessed him. It then changed the care package to meet Mr Y’s increased care needs. It again involved Mr Y’s family and relevant information from the care provider before the Council agreed with Ms V for Mr Y to remain in residential care.
26. The Council did not have to agree to the family requests to carry out a mental capacity assessment. It had to decide whether an assessment was warranted, based on its observation of Mr Y’s behaviour. Although the Council later found Mr Y lacked capacity to make decisions about his care needs, this does not mean its earlier decision not to carry out formal capacity assessment was wrongly made. It kept the question of his capacity under review and when it had grounds for concern, carried out a formal capacity assessment. As the Council’s assessment did not include irrelevant factors there was no fault in the way the Council made its decision. We cannot question whether a council’s decision is right or wrong simply because Ms V and Mr Y’s family disagrees with it. While Ms V may disagree with the result of the needs assessment, I have found the Council was not at fault.

The Council’s failure to ensure Mr Y could make an informed decision with his family about his future care

27. When it became clear Mr Y would be unable to return home, the Council gave two options to meet his care needs; residential care or sheltered accommodation.
28. While his family disagreed, the Council’s case notes show Mr Y was clear and consistent in his wish to move to sheltered accommodation. Although his family wanted the Council to formally assess Mr Y’s mental capacity, it had, based on observations, no doubts about Mr Y’s mental capacity to make this choice at that time. Although Mr Y’s family thought this was an unwise decision, the Council appropriately considered whether he had capacity to make that decision and took his views into account.
29. The Council was aware the family felt Mr Y lacked capacity but it was satisfied, based on observation, that it did not need to carry out formal assessment. While the family may have wanted the formal assessment, the Council was entitled to form this view on the appearance of Mr Y. It had to balance the family’s wishes against the importance of taking a least restrictive approach, based on its observation of Mr Y.
30. If the family did not feel Mr Y had enough information to make the decision Mr Y and his family could have asked for further details in the November meetings before making a choice. However, Mr Y was clear in his wish to move to sheltered accommodation and the Council sought to fulfil this in meeting his care needs. The Council was therefore not at fault as it had regard to Mr Y’s wishes on how to meet the assessed needs.
31. The needs assessment and the Council’s case notes show Mr Y’s family were present during meetings in November 2018 when Mr Y’s future care needs were discussed. The notes show Mr Y’s family were involved in the assessment and the options for care discussed with them and Mr Y. The notes show that Ms V disagreed with the outcome of the needs assessment and that she and Mr Y’s other children were given the chance to explain this to the Council. However, as he had mental capacity until October 2019, the Council was entitled to have regard to Mr Y’s wishes in determining if he should move to sheltered accommodation.
32. When Mr Y’s health deteriorated, the case notes show the Council reviewed Mr Y’s needs and found that Mr Y appeared to lack mental capacity. Following assessment confirming this, Ms V as Mr Y’s LPA decided Mr Y should remain in residential care.
33. As the family were involved in the assessment and discussions about Mr Y’s future care I have found the Council was not at fault and while he had capacity Mr Y was able to make an informed decision on his care, even though his family felt it was an unwise choice to move to sheltered accommodation.
34. Although the Council met with Mr Y without a family member present in April 2019, this is understandable as it was trying to establish whether he gave consent for the complaint to be made in his name. The discussion ended up covering wider issues concerning his care and the Council has apologised for this drift. I have not found the Council to be at fault for meeting with Mr Y alone.
35. Mr Y showed clear awareness of the complaint, and as he had capacity, he could have asked for the meeting to be stopped or postponed if he only wanted to speak to the Council with a family member present. The meeting gave Mr Y the chance to explain his complaint, to say he did not fully understand the options available for his care and for him to be given further written information about sheltered accommodation. Consequently, while the Council could have stopped the meeting to involve other family members as previously agreed, it was entitled to seek Mr Y’s consent and gain his perspective on the complaint.

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Final decision

36. I complete this investigation to find the Council was not at fault.

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Investigator's decision on behalf of the Ombudsman